Free movement of workers: Commission refers Italy to Court for discrimination in access to public sector posts

Brussels, 27 October 2011 –The European Commission has decided to refer Italy to the EU's Court of Justice because of discrimination against nationals of other Member States as regards public sector jobs. In particular, legislation applicable in Italy's province of Bolzano states that job candidates resident in the province of Bolzano for at least two years have preference over other candidates in accessing posts in the province’s public sector.

EU law on the free of movement of workers prohibits any discrimination based on nationality as regards conditions of work and employment. The Commission considers that Italy’s preference based on residence is indirect discrimination as Italian citizens are more likely to benefit from this priority of access to employment than candidates residing in other Member States.

Background

The ban on discrimination contained in Article 45 of the Treaty on the Functioning of the European Union covers not only overt discrimination on grounds of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (see inter alia, EU Court judgment of 26 May 1996 in case C-237/94 O'Flynn).

Unless objectively justified and proportionate to its aim, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage. That is true in particular of a measure, such as the Italian legislation in question, under which a distinction is drawn on the basis of residence, in that the requirement is liable to operate mainly to the detriment of nationals of other Member States, since non-residents are in the majority of cases foreigners.

Following the jurisprudence of the EU's Court of Justice, the Commission considers that a residence requirement used to give preference in access to employment is equivalent to an indirect discrimination based on nationality, and that the fact that in practice it does not really concern many cases cannot justify the alleged indirect discrimination.